"In concluding this phase of our argument we wish to say that, as respects the employes under the agreement, the rates fixed in 1925 were fixed in relation to the duties and responsiilities of the positions as then existing. Thereafter the business at the stations to which these positions were pertinent declined drastically, so that the total number of positions required to do the work was not as great as the number of positions formerly required, and so that the incumbent of each position was responsible for performing far less of the work than he was charged with performing when the rate was originally negotiated. Some positions of necessity bad to be abolished, and the carrier had the unquestioned right to abolish them. When decision was reached as to what positions would go, the incumbents of the telegrapher positions here in issue were extremely fortunate that their positions were retained and that to the diminished duties pertaining to them other duties were added to justify continuing them on the pay roll. The process by which this building up of diminished work and responsibility was carried on was one as old as the railroad itself, one redounding some times to the benefit and some times to the detriment of particular employes, and one well understood and long applied in unprotested practice on this railroad. The long lack of protest in the particular instances before the Board is overwhelming proof of our assertion as to practice, and demonstrates, if any further demonstration were needed, that the practice is in strict accord with the schedule. The Railroad Labor Board decision hereinabove referred to is proof of the ancient roots of this understanding and practice. The schedule itself bears it out. In truth, all circumstances in this case require complete denial of the claim."

OPINION OF BOARD: In Awards 417 and 444 of this Division, involving the same carrier, the same organization, the same agreement, the same rules, and the same issue on the merits as are presented in this proceeding, the Board held that the abolition of a cashier's position and the transfer of its duties to a position formnerly classified as telegrapher-clerk rendered the position of a telegrapher-cashier which resulted therefrom a new position within the meaning of Article 11 (b) of the Agreement. No adequate grounds appear for disturbing this determination of the Board, and it must be held to be controlling in the instant proceeding.

"When new positions are created," this governing rule specifies, "compensation will be fixed in conformity with that of existing positions of similar work and responsibility in the same seniority district." In circumstances where an old position is transformed into a new one, as in this proceeding, the application of the rule may lead to an increase or a decrease in the rate of compensation fixed for the new position as compared with that paid on the old, and it does not necessarily preclude the establishment of the same rate of compensation for the new position as prevailed on the old. The rates on existing positions of similar work and responsibility in the same seniority district constitute the controlling factor. In other words, the actual rates of compensation on the new positions will depend entirely upon a fair and reasonable application of the standards prescribed in the rule to the facts of each particular case.

It is the function of the carrier, in the first instance, to establish the rate in conformity with these standards; upon protest of the employes, the process of negotiation must be pursued. And if, with continued disagreement after negotiation, it may be assumed to be an appropriate function of this Board, upon finding a violation of the governing rule, to approve or prescribe the rate deemed to conform to that rule, such action can only be taken upon a record adequate not only to disclose the fact of violation but to determine the proper rate in the circumstances. The present record is clearly inade-

quate for this purpose; nor does the claimant request such action. Accordingly, this proceeding will be remanded to the parties for the determination of the proper rate of compensation for each of the positions involved, in conformity with the standards prescribed in Article II (b) of the Agreement.

The remaining question concerns the duration of the period for which the rates of compensation to be so fixed by the parties shall be operative, from the standpoint of both their future applicability and their retroactive effect.

This claim was submitted under the Agreement effective February 5, 1924. Effective December 1 1938 a new Agreement was entered into by the parties, and this Agreement specifies the rates applicable to the positions here involved. While these rates, which are the same as those that prevailed prior to the negotiation of the new Agreement (the rates being those in effect September 30 1938), are not necessarily the proper rates under the earlier Agreement, during the period when the new positions were created, they do constitute the rates of compensation to be applied subsequent to December 1, 1938. There were no reservations whatever in the Agreement of that date relative to the positions here in issue, and the rates specified therein for these positions must be accepted as the rates agreed upon by the parties. It is not the function of this Board to alter the terms of the prevailing Agreement. Since, moreover, the positions here involved were not created subsequent to that Agreemen, there are no new positions, established after December 1, 1938 to which Article II (b) can apply. The rates to be fixed by the parties in this proceeding as remanded, therefore, will not only be fixed, under these circumstances, for the sole purpose of computing retroactive compensation, if any, but this retroactive compensation will not, under the same circumstances, extend forward beyond December 1, 1938.

As far as the beginning of the period of reparations is concerned, Article V (i) of the Agreement of February 5, 1924 governs. Despite extreme contentions of both parties found in the record, it is established by previous awards of this Division involving the same carrier that while Article V (i) does not bar suit in the case of continuing violations, it limits recovery to a period beginning thirty days prior to the filing of the complaint. Furthermore, the parties have on various occasions voluntarily applied this rule as thus interpreted, and they openly agreed upon this interpretation of the rule at the hearing before the Referee in this proceeding. In so far, then, as the rates to be agreed upon by the parties involve retroactive compensation, the period of such compensation will begin, in each case, thirty days prior to the date of the filing of the complaint, as disclosed in the record, and will extend to December 1, 1938.

Where, of course, any position involved was abolished, or so reclassified as to remove the new duties, prior to December 1, 1938, retroactive compensation will not extend beyond the date of such abolition or reclassification.

FINDINGS: The Third Division of the Adjustment Board, after giving the parties to this dispute due notice of hearing thereon and upon the whole record and all the evidence, finds and holds:

That the carrier and the employes involved in this dispute are respectively carrier and employes within the meaning of the Railway Labor Act as approved June 21, 1934;

That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and

That Article II (b) was applicable to the positions here involved to December 1, 1938, and that the employes are entitled to such retroactive com-

AWARD